SCHAF schaeffler WP1 TD book1 rev0

TENDER DOCUMENT BOOK – PROPOSED CONTRACT PROJECT : PACKAGE : LOCATION : SCHAEFFLER VIETNAM NEW FACTORY MAIN CONTRACTOR AMATA INDUSTRIAL PARK, BIEN HOA, VIETNAM THE EMPLOYER: SCHAEFFLER VIETNAM CO, LTD Date Revision September 15, 2017 00 Prepared by Reviewed by Thanh Nam Mr Le Hoang Son This document is the property of Archetype Group All rights reserved Violators will be pursued under civil and criminal law SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Approved by PM GENERAL TABLE OF CONTENT OF TENDER DOCUMENT BOOK 0- INSTRUCTIONS TO TENDERER A TENDER DATA SHEET (TDS) B GENERAL INTRODUCTION C REQUIREMENTS TO TENDERERS D CONDITIONS OF TENDER E APPENDICES BOOK – PROPOSED CONTRACT A CONTRACT AGREEMENT B LETTER OF ACCEPTANCE C MASTER PROGRAM D APPENDIX TO TENDER E PARTICULAR CONDITIONS F GENERAL CONDITIONS G APPENDICES BOOK – GENERAL REQUIREMENTS A GENERAL REQUIREMENTS B OHSE SUPPLIERS/CONTRACTORS INSTRUCTION C OHSE SITE SAFETY PLAN BOOK – METHOD OF MEASUREMENT & BILL OF QUANTITIES A METHOD OF MEASUREMENT B BILL OF QUANTITIES C DETAILS OF TENDER QUANTITY BOOK – TECHNICAL SPECIFICATIONS A TECHNICAL SPECIFICATIONS BOOK – TENDER DRAWINGS A TENDER DRAWINGS SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page TABLE OF CONTENT OF BOOK A PROPOSED CONTRACT AGREEMENT .3 B LETTER OF ACCEPTANCE C MASTER PROGRAM .8 D APPENDIX TO TENDER E PARTICULAR CONDITIONS OF CONTRACT 11 F GENERAL CONDITIONS OF CONTRACT 22 G APPENDICIES .84 SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page A PROPOSED CONTRACT AGREEMENT Contract No.: Package: Project: _ THIS CONTRACT AGREEMENT is made the day of _, 2017 BETWEEN (1) [Name of Employer], a company incorporated under the laws of [country of Employer] and having his principal place of business at [address of Employer] (hereinafter called “the Employer”) of the one part and (2) [Name of Contractor], a corporation incorporated under the laws of [country of Contractor] and having his principal place of business at [address of Contractor] (hereinafter called “the Contractor”) of the other part Whereas the Employer desires that the Works known as MAIN CONTRACTOR should be executed by the Contractor, and has accepted a Tender by the Contractor for the execution and completion of these Works and the remedying of any defects therein The Employer and the Contractor agree as follows: Scope of Work To be advised later Contract DocumentsOTHER ITEMS 2.1 Contract Documents (Reference Conditions of Contract) The following documents shall constitute the Contract between the Employer and the Contractor, and each shall be read and construed as an integral part of the Contract: a This Contract Agreement and the Appendixes hereto (if any) b Letter of Acceptance c Particular Condition of Contract d General Condition of Contract (FIDIC 1999 First Edition- red Book) e General Requirements f Technical Specifications g Drawings h Bill of Quantity (BOQ) i The detailed work schedules (Master Program) j Any other documents SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 3 Contract Price and Terms of Payment (Reference Conditions of Contract) 3.1 Type of Contract: Lump-sum contract 3.2 Contract Price The Employer hereby agrees to pay to the Contractor the lump-sum Contract Price in consideration of the performance by the Contractor of its obligations hereunder The lump-sum Contract Price shall be [amount in figures] (in words: [amount of local currency in words]) as specified in Total Project BOQ Summary (Grand Summary), or such other sums as may be determined in accordance with the terms and conditions of the Contract 3.3 Terms of Payment The terms and procedures of payment according to which the Employer will reimburse the Contractor are given in the terms and conditions of the Contract Commencement Date and Time for Completion The Commencement date is _/ _/ 2017 as defined in General Conditions of the Contract and the Contractor will undertake to take possession of the site on the said date It is agreed by the Employer and the Contractor that the commencement date shall be the date for the calculation of time for completion, fixed at calendar days The completion date shall be on _/ _/ 2017 IN WITNESS WHEREOF the Employer and the Contractor have caused this Agreement to be duly executed by their duly authorized representatives the day and year first above written Authorized Representative of the Employer (Name, Position, Signatures and Sealed) _ Authorized Representative of the Contractor (Name, Position, Signatures and Sealed) _ SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page B LETTER OF ACCEPTANCE To: Add: Att: [Company name] [Address] [Authorized Representative] Tel: [Telephone number] Fax: [Facsimile number] Email: [Email] Date: Contract Ref: Letter Ref: Re: [Date/month/year] [Code of Contract] [Ref of LOA] LETTER OF ACCEPTANCE FOR CONSTRUCTION OF THE [package] WORKS PACKAGE OF [Project] at [Address of Project] Dear Sirs, Following our discussions on the above Package of the Project, we, [Employer name] (hereinafter referred to as “the Employer”) are pleased to send [Contractor name] (hereinafter referred to as “the Contractor”) this LETTER OF ACCEPTANCE (LOA) to confirm that we shall engage you, as the awarded Contractor for the Package pending the agreement on the Contract document within two (02) weeks from the date of this LOA This LOA sets out the agreement reached between us, the Employer and the Contractor for the construction, execution and completion of this Package of the Project (“Works”) We, the Employer in this Project, confirm the award of [Package] (the “Package”) of the Project to the Contractor, in accordance with the scope of works set forth below and subject to the terms and conditions hereof The scope of works shall include the shop drawings, construction and completion of the Package which has been defined in the Tender documentation as issued to the Contractor and all agreement between the Employer and the Contractor during tender negotiation, including tender clarifications and results from tender interviews (Appendix A), the Bill of Quantities (Appendix B), the drawing list (Appendix C) which is the basis of the Contractor final tender offer Time for Completion of the Package is fixed at from the Commencement Date In consideration of the Contractor completing the Works and remedying any defects therein to the full satisfaction of the Employer, the Employer shall pay to the Contractor a lump sum price of [amount in figures] (in words: [amount of local currency in words]), duties, fees or any other amounts that may become payable under the Contract in connection with the completion of the Works (hereinafter called the “Accepted Contract Amount”) The Contract Price is a fixed Lump Sum price which shall be full and total SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page compensation for the Works and shall cover any and all enabling tasks, ancillary materials, incidental and subsidiary components and items of work required, whether implied or inferred, to perform and execute the Works The Contract Price shall be paid to the Contractor’s nominated Bank Account in US Dollar through bank transfer Payments shall be made in accordance in with the terms and conditions of the Contract unless the Parties agreed otherwise All preliminary/site office/mobilization/access works and equipment – in accordance with the Tender Documentation - included in the Contract Price Safety: the Contractor will provide a safe working environment at all times including ensuring that all safety lines, safety nets, working platforms (as the case may be and required by the Engineer) are fully installed to the satisfaction of the Employer and/or the Engineer The Contractor shall provide a fully qualified Site Safety Team to be present on site at all times during working hours; at no cost to the Employer The Contractor shall pay any costs to the Employer for usage and consumption of power, water or other facilities to complete the Works All bonds/bank securities shall be irrevocable and unconditional – in accordance with the Tender documents Advance Payment: [amount in figures] (in words: [amount of local currency in words]) The Advance payment shall be paid within fourteen (14) calendar days to the Contractor after the Contractor’s submission of acceptable Advance Payment Bond and acceptable Performance Security For the avoidance of doubt, the Employer shall not make any payment until the Advance Payment Bond and Performance Security are fully satisfied to the Employer Performance Security: [amount in figures] (in words: [amount of local currency in words]) The Expiry of Performance Security is as per the Tender documents and the Contract during the tender negotiation between the Employer and the Contractor The Defects Notification Period: 365 (three hundred sixty five) calendar days All insurances will be effective and maintained until final completion of the Works at expenses of Contractor All insurances are in accordance with the Tender documents For avoidance of doubt, there shall be four kinds of insurances: Insurance of Construction All Risks (CAR) Insurance for Third Party SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page Insurance for the Contractor’s workmen compensation Insurance for the Contractor’s equipment The Contract Documents which will form the Contract shall be inclusive of the contents as stated in the Tender documents (collectively referred to as the “Contract”) The Parties shall strive to negotiate and sign the Contract within two (02) weeks from the date of the LOA Until the Contract is executed between the Contractor and the Employer, this Letter of Acceptance shall constitute a binding contract between the Contractor and the Employer This Letter of Acceptance shall become an integral part of the Contract documents All exclusions, conditions and qualifications in the Tender submission or any subsequent correspondences or discussions shall be deemed to have been unconditionally withdrawn during negotiations with the Contractor Termination, if required to be resorted to, by the Employer or the Contractor shall be in accordance with the provisions in the Conditions of Contract The Contractor will comply with all applicable laws and regulations (including but not limited to any and all applicable laws and regulations after the date of this LOA) and all the Tender Documents The Contractor shall sign, stamp and return to the Employer the Acceptance Statement overleaf indicating his full acceptance of the foregoing without any further conditions and/or qualifications whatsoever within three (3) days from the date of this LOA Yours Faithfully, [Employer name] SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page C MASTER PROGRAM (To be attached later) SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page D APPENDIX TO TENDER Item Sub-Clause Data Employer’s name and address 1.1.2.2 1.3 & TMS Building – 6th Fl., 172 Hai Ba Trung St., District 1, HCMC, Vietnam Contractor’s name and address 1.1.2.3 1.3 & _ The Engineer’s name and address 1.1.2.4 1.3 & ARCHETYPE VIETNAM CO Time for completion of the Works 1.1.3.3 1.1.5.6 & 300 calendar days Defects Notification Period 1.1.3.7 365 calendar days Electronic transmission systems 1.3 By e-mail, with proof of that all related Communications have been successfully delivered, sent or transmitted Governing Law 1.4 Laws of Vietnam Language in tender document and correspondence 1.4 English Language for communications 20th Floor, REE Tower, 09 Doan Van Bo Street, District 4, HCMC, Vietnam English and Vietnamese Time for access to the Site 2.1 days after Commencement Date Amount of Performance Security 4.2 10% of Accepted Contract Amount, in the currency in which the Contract Price is payable Normal working hours 6.5 7:30AM to 5:00PM from Monday to Saturday Delay damages for the Works 8.7 & 14.15(b) 0.1% of full Contract Price per day, in the currencies in which the Contract Price is payable Maximum amount of delay damages 8.7 & 14.15(b) 10% of the Final Contract Price Percentage for adjustment for Provisional Sums 13.5 (b) Not applicable Adjustments for changes in Cost 13.8 Not applicable Total advance payment 14.2 10% of Accepted Contract Amount Start repayment of advance payment 14.2 From the first interim payment Repayment amortization of advance payment 14.2 10% of each interim payment Currencies and proportions 14.2 VND Percentage of retention 14.3 10% SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page a b c return the Performance Security to the Contractor, pay the Contractor in accordance with Sub-Clause 19.6 [Optional Termination, Payment and Release], and pay to the Contractor the amount of any loss of profit or other loss or damage sustained by the Contractor as a result of this termination 17 RISK AND RESPONSIBILITY 17.1 Indemnities The Contractor shall indemnify and hold harmless the Employer, the Employer’s Personnel, and their respective agents, against and from all claims, damages, losses and expenses (including legal fees and expenses) in respect of: a b bodily injury, sickness, disease or death, of any person whatsoever arising out of or in the course of or by reason of the Contractor’s design (if any), the execution and completion of the Works and the remedying of any defects, unless attributable to any negligence, willful act or breach of the Contract by the Employer, the Employer’s Personnel, or any of their respective agents, and damage to or loss of any property, real or personal (other than the Works) to the extent that such damage or loss: (i) arises out or in the course of or by reason of the Contractor’s design (if any), the execution and completion of the Works and the remedying of any defects, and (ii) is attributable to any negligence, willful act or breach of the Contract by the Contractor, the Contractor’s Personnel, their respective agents, or anyone directly or indirectly employed by any of them The Employer shall indemnify and hold harmless the Contractor, the Contractor’s Personnel, and their respective agents, against and from all claims, damages, losses and expenses (including legal fees and expenses) in respect of (1) bodily injury, sickness, disease or death, which is attributable to any negligence, willful act of breach of the Contract by the Employer, the Employer’s Personnel, or any of their respective agents, and (2) the matters for which liability may be excluded from insurance cover, as described in sub-paragraphs (d) (i), (ii) and (iii) of Sub-Clause 18.3 [Insurance Against Injury to Persons and Damage to Property] 17.2 Contractor’s Care of the Works The Contractor shall take full responsibility for the care of the Works and Goods from the Commencement Date until the Taking –Over Certificates is issued (or is deemed to be issued under Sub-Clause 10.1 [Taking Over of the Works and Sections]) for the Works, when responsibility for the care of the Works shall pass to the Employer If a Taking-Over Certificate is issued (or is so deemed to be issued) for any Section or part of the Works, responsibility for the care of the Section or part shall then pass to the Employer After responsibility has accordingly passed to the Employer, the Contractor shall take responsibility for the care of any work which is outstanding on the date stated in a Taking-Over Certificate, until this outstanding work has been completed If any loss or damage happens to the Works, Goods or Contractor’s Documents during the period when the Contractor is responsible for the care, from any cause not listed in Sub-Clause 17.3 SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 71 [Employer’s Risks], the Contractor shall rectify the loss or damage at the Contractor’s risk and cost, so that the Works, Goods and Contractor’s Documents conform with the Contract The Contractor shall be liable for any loss or damage caused by any actions performed by the Contractor after a Taking-Over Certificate has been issued The Contractor shall also be liable for any loss or damage which occurs after a Taking-Over Certificate has been issued and which arose from a previous event for which the Contractor was liable 17.3 Employer’s Risks The risks referred to in Sub-Clause 17.4 below are: a b c d e f g h war, hostilities (whether war be declared or not), invasion, act of foreign enemies, rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war, within the Country, riot, commotion or disorder within the Country by persons, other than the Contractor’s Personnel and other employees of the Contractor and Subcontractors, munitions of war, explosives materials, ionizing radiation or contamination by radioactivity, within the Country, expect as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity, pressure waves caused by aircraft or other aerial devices traveling at sonic or supersonic speeds, use or occupation by the Employer of any part of the Permanent Works except as may be specified in the Contract, design of any part of the Works by the Employer’s Personnel or by others for whom the Employer is responsible, and any operation of the forces of nature which is Unforeseeable or against which an experienced contractor could not reasonably have been expected to have taken adequate preventative precautions 17.4 Consequences of Employer’s Risks If and to the extent that any of the risks listed in Sub-Clause 17.3 above results loss or damage to the Works, Goods or Contractor’s Documents, the Contractor shall promptly give notice to the Engineer and shall rectify this loss or damage to the extent required by the Engineer If the Contractor suffers delay and/or incurs Cost from rectifying this loss damage, the Contractor shall give a further notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to: a b an extension of time for any such delay, if completion is or will be delayed under SubClause 8.4 [Extension of Time for Completion], and payment of any such Cost, which shall be included in the Contract Price In the case of subparagraphs (f) and (g) of Sub-Clause 17.3 [Employer’s Risks], reasonable profit on the Cost shall also be included After receiving this further notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determination] to agree or determine these matters 17.5 Intellectual and Industrial Property Rights In this Sub-Clause, “infringement” means an infringement (or alleged infringement) of any patent, registered design, copyright, trade mark, trade name, trade secret or other intellectual or industrial SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 72 property right relating to the Works, and “claim” means a claim (or proceedings pursuing a claim) alleging an infringement Whenever a Party does not give notice to the other Party of any claim within 28 days of receiving the claim, this first Party shall be deemed to have waived any right to indemnity under this Sub-Clause The Employer shall indemnify and hold the Contractor harmless against and from any claim alleging an infringement, which is or was: a b an unavoidable result of the Contractor’s compliance with the Contract, or a result of any Works being used by the Employer: (i) for a purpose other than that indicated by, or reasonably to be inferred from, the Contract, or (ii) in conjunction with anything not supplied by the Contractor, unless such use was disclosed to the Contractor prior to the Base Date or is stated in the Contract The Contractor shall indemnify and hold the Employer harmless against and from any other claim which arises out of or in relation to (i) the manufacture, use, sale or import of any Goods, or (ii) any design for which the Contractor is responsible If a Party is entitled to be indemnified under this Sub-Clause, the indemnifying Party may (at its cost) conduct negotiations for the settlement of the claim, and any litigation or arbitration, which may arise from it The other Party shall, at the request and cost of the indemnifying Party, assist in contesting the claim This other Party (and its Personnel) shall not make any admission, which might be prejudicial to the indemnifying Party, unless the indemnifying Party failed to take over the conduct of any negotiations, litigation or arbitration upon being requested to so by such other Party 17.6 Limitation of Liability Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract, other than under Sub-Clause 16.4 [Payment on Termination] and SubClause 17.1 [Indemnities] The total liability of the Contractor to the Employer, under or in connection with the Contract other than under Sub-Clause 4.19 [Electricity, Water and Gas], Sub-Clause 4.20 [Employer’s Equipment and Free-Issue Material], Sub-Clause 17.1 [Indemnities] and Sub-Clause 17.5 [Intellectual and Industrial Property Rights], shall not exceed the sum stated in the Particular Conditions or (if a sum is not so stated) the Accepted Contract Amount This Sub-Clause shall not limit liability in any case of fraud, deliberate default or reckless misconduct by the defaulting Party 18 INSURANCE 18.1 General Requirements for Insurances In this Clause, “Insuring Party” means, for each type of insurance, the Party responsible for effecting and maintaining the insurance specified in the relevant Sub-Clause Wherever the Contractor is the insuring Party, each insurance shall be effected with insurers and in terms approved by the Employer These terms shall be consistent with any terms agreed by both SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 73 Parties before the date of the Letter of Acceptance This Agreement of terms shall take precedence over the provisions of this Clause Wherever the Employer is the insuring Party, each insurance shall be effected with insurers and in terms consistent with the details annexed to the Particular Conditions If a policy is required to indemnify joint insured, the cover shall apply separately to each insured as though a separate policy had been issued for each of the joint insured If a policy indemnifies additional joint insured, namely in addition to the insured specified in this Clause, (i) the Contractor shall act under the policy on behalf of these additional joint insured except that the Employer shall act for Employer’s Personnel, (ii) additional joint insured shall not be entitled to receive payments directly from the insurer or to have any other direct dealings with the insurer, and (iii) the insuring Party shall require all additional joint insured to comply with the conditions stipulated in the policy Each policy insuring against loss or damage shall provide for payments to be made in the currencies required to rectify the loss or damage Payments received from insurers shall be used for the rectification of the loss or damage The relevant insuring party shall, within the respective periods stated in the Appendix to Tender (calculated from the Commencement Date), submit to the other Party: a b evidence that the insurances described in this Clause have been effected, and copies of the policies for the insurance described in Sub-Clause 18.2 [Insurance for Works and Contractor’s Equipment] and Sub-Clause 18.3 [Insurance against injury to Persons and Damage to Property] When each premium is paid, the insuring Party shall submit evidence of payment to the other Party Whenever evidence or policies are submitted, the insuring Party shall also give notice to the Engineer Each Party shall comply with the conditions stipulated in each of the insurance policies The insuring Party shall keep the insurers informed of any relevant changes to the execution of the Works and ensure that insurance is maintained in accordance with this Clause Neither Party shall make any material alteration to the terms of any insurance without the prior approval of the other Party If any insurer makes (or attempts to make) any alteration, the Party first notified by the insurer shall promptly give notice to the other Party If the insuring Party fails to effect and keep in force of any of the insurances it is required to effect and maintain under the Contract, or fails to provide satisfactory evidence and copies of policies in accordance with this Sub-Clause, the other Party may (at its option and without prejudice to any other right or remedy) effect insurance for the relevant coverage and pay the premiums due The insuring Party shall pay the amount of these premiums to the other Party, and the Contract Price shall be adjusted accordingly Nothing in this Clause limits the obligations, liabilities or responsibilities of the Contractor or the Employer, under the other terms of the Contract or otherwise Any amounts not insured or not recovered from the insurers shall be borne by the Contractor and/or the Employer in accordance with these obligations, liabilities or responsibilities However, if the insuring Party fails to effect and keep in force an insurance which is available and which it is required to effect and maintain under the Contract, and the other Party neither approves the omission nor effects insurance for the coverage relevant to this default, any moneys which should have been recoverable under this insurance shall be paid by the insuring Party SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 74 Payments by one Party to the other Party shall be subject to Sub-Clause 2.5 [Employer’s Claims] or Sub-Clause 20.1 [Contractor’s Claims], as applicable 18.2 Insurance for Works and Contractor’s Equipment The insuring Party shall insure the Works, Plant, Materials and Contractor’s Documents for not less than the full reinstatement cost including the costs of demolition, removal of debris and professional fees and profit This insurance shall be effective from the date by which the evidence is to be submitted under sub-paragraph (a) of Sub-Clause 18.1 [General Requirements for Insurances], until the date of issue of the Taking-Over Certificate for the Works The insuring Party shall maintain this insurance to provide cover until the date of issue of the Performance Certificate, for loss or damage for which the Contractor is liable arising from a cause occurring prior to the issue of the Taking-Over Certificate, and for loss or damage caused by the Contractor in the course of any other operations (including those under Clause 11 [Defects Liability]) The insuring Party shall issue insure the Contractor’s Equipment for not less than the full replacement value, including delivery to Site For each item of Contractor’s Equipment, the insurance shall be effective while it is being transported to the Site and until it is not longer required as Contractor’s Equipment Unless otherwise stated in the Particular Conditions, insurance under this Sub-Clause: a b c d e shall be effected and maintained by the Contractor as insuring Party, shall be in the joint names of the Parties, who shall be jointly entitled to receive payments from the insurers, payments being held or allocated between the Parties for the sole purpose of rectifying the loss or damage, shall cover all loss and damage from any cause not listed in Sub-Clause 17.3 [Employer’s Risks], shall also cover loss or damage to a part of the Works which is attributable to the use or occupation by the Employer of another part of the Works, and loss or damage from the risks listed in sub-paragraphs (c), (g) and (h) of Sub-Clause 17.3 [Employer’s Risks], excluding (in each case) risks which are not insurable at commercially reasonable terms, with deductibles per occurrence of not more than the amount stated in the Appendix to Tender (if an amount is not so stated, this sub-paragraph (d) shall not apply), and may however exclude loss of, damage to, and reinstatement of: (i) a part of the Works which is in a defective condition due to a defect in its design, materials or workmanship (but cover shall include any other parts which are lost or damaged as a direct result of this defective condition and not as described in subparagraph (ii) below), (ii) a part of the Works which is lost or damaged in order to reinstate any other part of the Works if this other part is in a defective condition due to a defect in its design, materials or workmanship, (iii) a part of the Works which has been taken over by the Employer, except to the extent that the Contractor is liable for the loss or damage, and (iv) Goods while they are not in the Country, subject to Sub-Clause 14.5 [Plant and Materials intended for the Works] If, more than one year after the Base Date, the cover described in sub-paragraph (d) above ceases to be available at commercially reasonable terms, the Contractor shall (as insuring Party) give notice to SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 75 the Employer, with supporting particulars The Employer shall then (i) be entitled subject to Sub-Clause 2.5 [Employer’s Claims] to payment of an amount equivalent to such commercially reasonable terms as the Contractor should have expected to have paid for such cover, and (ii) be deemed, unless he obtains the cover at commercially reasonable terms, to have approved the omission under Sub-Clause 18.1 [General Requirements for Insurances] 18.3 Insurance against Injury to Persons and Damage to Property The insuring Party shall insure against each Party’s liability for any loss, damage, death or bodily injury which may occur to any physical property (except things insured under Sub-Clause 18.2 [Insurance for Works and Contractor’s Equipment] or to any person (except persons insured under Sub-Clause 18.4 [Insurance for Contractor’s Personnel], which may arise out of the Contractor’s performance of the Contract and occurring before the issue of the Performance Certificate This insurance shall be for a limit per occurrence of not less than the amount stated in the Appendix to Tender, with no limit on the number of occurrences If an amount is not stated in the Appendix to Tender, this Sub-Clause shall not apply Unless otherwise stated in the Particular Conditions, the insurances specified in this Sub-Clause: a b c d shall be effected and maintained by the Contractor as insuring Party, shall be in the joint names of the Parties, shall be extended to cover liability for all loss and damage to the Employer’s property (except things insured under Sub-Clause 18.2) arising out of the Contractor’s performance of the Contract, and may however exclude liability to the extent that arises from: (i) the Employer’s right to have the Permanent Works executed on, over, under, in or through any land, and to occupy this land for the Permanent Works, (ii) damage which is an unavoidable result of the Contractor’s obligations to execute the Works and remedy any defects, and (iii) a cause listed in Sub-Clause 17.3 [Employer’s Risks], except to the extent that cover is available at commercially reasonable terms 18.4 Insurance for Contractor’s Personnel The Contractor shall effect and maintain insurance against liability for claims, damages, losses and expenses (including legal fees and expenses) arising from injury, sickness, disease or death of any person employed by the Contractor or any other of the Contractor’s Personnel The Employer and the Engineer shall also be indemnified under the policy of insurance, except that this insurance may exclude losses and claims to the extent that they arise from any act or neglect of the Employer or of the Employer’s Personnel The insurance shall be maintained in full force and effect during the whole time that these personnel are assisting in the execution of the Works For a Subcontractor’s employees, the insurance may be effected by the Subcontractor, but the Contractor shall be responsible for compliance with this Clause 19 FORCE MAJEURE 19.1 Definition of Force Majeure In this Clause, “Force Majeure” means an exceptional event or circumstance: SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 76 a b c d which is beyond a Party’s control which such Party could not reasonably have provided against before entering into the Contract, which having arisen, such Party could not reasonably have avoided or overcome, and which is not substantially attributable to the other Party Force Majeure may include but is not limited to exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied (i) war, hostilities (whether war be declared or not), invasion, act of foreign enemies, (ii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war, (iii) riot, commotion, disorder, strike or lockout by persons other than the Contractor’s Personnel and other employees of the Contractor and Sub-contractors, (iv) munitions of war, explosive materials, ionizing radiation or contamination by radioactivity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity, and (v) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity 19.2 Notice of Force Majeure If a Party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, then it shall give notice to the other Party of the event or circumstances constituting the Force Majeure and shall specify the obligations, the performance of which is or will be prevented The notice shall be given within 14 days after the Party became aware, (or should have become aware), of the relevant event or circumstance constituting Force Majeure The Party shall, having given notice, be excused performance of such obligations for/so long as such Force Majeure prevents it from performing them Notwithstanding any other provision of this Clause, Force Majeure shall not apply to obligations of either Party to make payments to the other Party under the Contract 19.3 Duty to Minimize Delay Each Party shall at all times use all reasonable endeavors to minimize any delay in the performance of the Contract as a result of Force Majeure A Party shall give notice to the other Party when it ceases to be affected by the Force Majeure 19.4 Consequence of Force Majeure If the Contractor is prevented from performing any of his obligations under the Contract by Force Majeure of which notice has been given under Sub-Clause 19.2 [Notice of Force Majeure], and suffers delay and/or occurs Cost by reason of such Force Majeure, the Contractor shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to: a b an extension of time for any such delay, if completion is or will be delayed, under SubClause 8.4 [Extension of Time for Completion], and if the event or circumstance is of the kind described in sub-paragraphs (i) to (iv) of SubClause 19.1 [Definition of Force Majeure] and, in the case of sub-paragraphs (ii) to (iv), occurs in the Country, payment of any such Cost SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 77 After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters 19.5 Force Majeure Affecting Subcontractor If any Subcontractor is entitled under any contract or agreement relating to the Works to relief from force majeure on terms additional to or broader than those specified in this Clause, such additional or broader force majeure events or circumstances shall not excuse the Contractor’s non-performance or entitle him to relief under this Clause 19.6 Optional Termination, Payment and Release If the execution of substantially all the Works in progress is prevented for a continuous period of 84 days by reason of Force Majeure of which notice has been given under Sub-Clause 19.2 [Notice of Force Majeure], or for multiple periods which total more than 140 days due to the same notified Force Majeure, then either Party may give to the other Party a notice of termination of the Contract In this event, the termination shall take effect days after the notice is given, and the Contractor shall proceed in accordance with Sub-Clause 16.3 [Cessation of Work and Removal of Contractor’s Equipment] Upon such termination, the Engineer shall determine the value of the work done and issue a Payment Certificate, which shall include: a b c d e the amount payable for any work carried out for which a price is stated in the Contract; the Cost of Plan and Materials ordered for the Works which have been delivered to the Contractor, or of which the Contractor is liable to accept delivery: this Plant and Materials shall become the property of (and be at the risk of) the Employer when paid for by the Employer, and the Contractor shall place the same at the Employer’s disposal; any other Cost or liability which in the circumstances was reasonably incurred by the Contractor in the expectation of completing the Works; the Cost of removal of Temporary Works and Contractor’s Equipment from the Site and the return of these items to the Contractor’s works in his country (or to any other destination at no greater cost); and the Cost of repatriation of the Contractor’s staff and labor employed wholly in connection with the Works at the date of termination 19.7 Release from Performance under the Law Notwithstanding any other provision of this Clause, if any event or circumstance outside the control of the Parties (including, but not limited to Force Majeure) arises which makes it impossible or unlawful for either or both Parties to fulfill its or their contractual obligations or which, under the law governing the Contract, entitles the parties to be released from further performance of the Contract, then upon notice by either Party to other Party of such event or circumstance: a b the Parties shall be discharged from further performance, without prejudice to the rights of either Party in respect of any previous breach of the Contract, and the sum payable by the Employer to the Contractor shall be the same as would have been payable under Sub-Clause 19.6 [Optional Termination, Payment and Release] if the Contract had been terminated under Sub-Clause 19.6 SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 78 20 CLAIM, DISPUTES AND ARBITRATION 20.1 Contractor’s Claims If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Engineer, describing the event or circumstance giving rise to the claim The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim Otherwise, the following provisions of this Sub-Clause shall apply The Contractor shall also submit any other notices, which are required by the Contract, and supporting particulars for the claim, all as relevant to such event or circumstance The Contractor shall keep such contemporary records as may be necessary to substantiate any claim, either on the Site or at another location acceptable to the Engineer Without admitting the Employer’s liability, the Engineer may, after receiving any notice under this Sub-Clause, monitor the record keeping and/or instruct the Contractor to keep further contemporary records The Contractor shall permit the Engineer to inspect all these records, and shall (if instructed) submit copies to the Engineer Within 42 days after the Contractor became aware (or should have become aware) of the event or/circumstance giving rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Engineer, the Contractor shall send to the Engineer a fully detailed claim which includes full supporting particulars of the basis of the claim and of the extension of time and/or additional payment claimed If the event or circumstance giving rise to the claim has a continuing effect: a b c this fully detailed claim shall be considered as interim the Contractor shall send further interim at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Engineer may reasonably require; and the Contractor shall send a final claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Engineer Within 42 days after receiving a claim or any further particulars supporting a previous claim, or within such other period as may be proposed by the Engineer and approved by the Contractor, the Engineer shall respond with approval, or with disapproval and detailed comments He may also request any necessary further particulars, but shall nevertheless give his response on the principles of the claim within such time Each Payment Certificate shall include such amounts for any claim as have been reasonably substantiated as due under the relevant provision of the Contract Unless and until the particulars supplied are sufficient to substantiate the whole of the claim, the Contractor shall only be entitled to payment for such part of the claim, as he has been able to substantiate The Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (i) the extension (if any) of the Time for Completion (before or after its expiry) in accordance with Sub- SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 79 Clause 8.4 [Extension of Time for Completion], and/or (ii) the additional payment (if any) to which the Contractor is entitled under the Contract The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may apply to a claim If the Contractor fails to comply with this or another Sub-Clause in relation to any claim, any extension of time and/or additional payment shall take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under the second paragraph of this Sub-Clause 20.2 Appointment of the Dispute Adjudication Board Disputes shall be adjudicated by a DAB in accordance with Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] The Parties shall jointly appoint a DAB by the date in the Appendix to Tender The DAB shall comprise, as stated in the Appendix to Tender, either one or three suitably qualified persons (“the member”) If the number is not so stated and the Parties not agree otherwise, the DAB shall comprise three persons If the DAB is to comprise three persons, each Party shall nominate one member for the approval of the other Party The Parties shall consult both these members and shall agree upon the third member, who shall be appointed to act as chairman However, if a list of potential members is included in the Contract, the members shall be selected from those on the list, other than anyone who is unable or unwilling to accept appointment to the DAB The agreement between the Parties and either the sole member (“adjudication”) or each of the three members shall incorporate by reference the General Conditions of Dispute Adjudication Agreement contained in the Appendix to these General Conditions, with such amendments as are agreed between them The terms of the remuneration of either the sole member or each of the three members, including the remuneration of any expert whom the DAB consults, shall be mutually agreed upon by the Parties when agreeing the terms of appointment Each Party shall be responsible for paying one-half of this remuneration If at any time the Parties so agree, they may jointly refer a matter to the DAB for it to give its opinion Neither Party shall consult the DAB on any matter without the agreement of the other Party If at any time the Parties so agree, they may appoint a suitably qualified person or persons to replace (or to be available to replace) any one or more members of the DAB Unless the Parties agree otherwise, the appointment will come into effect if a member declines to act or is unable as a result of death, disability, resignation or termination of appointment If any of these circumstances occurs and no such replacement is available, a replacement shall be appointed in the same manner as the replaced person was required to have been nominated or agreed upon, as described in this Sub-Clause The appointment of any member may be terminated by mutual agreement of both Parties, but not by the Employer or the Contractor acting alone Unless otherwise agreed by both Parties, the appointment of the DAB (including each member) shall expire when the discharge referred to in SubClause 14.12 [Discharge] shall have become effective SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 80 20.3 Failure to Agree Dispute Adjudication Board If any of the following apply, namely: a b c d the Parties fail to agree upon the appointment of the sole member of the DAB by the date stated in the first paragraph of Sub-Clause 20.2, either Party fails to nominate a member (for approval by the other Party) of a DAB of three persons by such date, the Parties fail to agree upon the appointment of the third member (to act as chairman) of the DAB by such date, or the parties fail to agree upon the appointment of a replacement person within 42 days after the date on which the sole member or one of the three members declines to act or is unable to act as a result of death, disability, resignation or termination of appointment, then the appointment entity or official named in the Particular Conditions shall, upon the request of either or both of the Parties and after due consultation with both Parties, appoint this member of the DAB This appointment shall be final and conclusive Each Party shall be responsible for paying one-half of the remuneration of the appointing entity or official 20.4 Obtaining Dispute Adjudication Board’s Decision If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer, either Party may refer the dispute in writing to the DAB for its decision, with copies to the other Party and the Engineer Such reference shall state that it is given under this Sub-Clause For a DAB of three persons, the DAB shall be deemed to have received such reference on the date when it is received by the chairman of the DAB Both Parties shall promptly make available to the DAB all such additional information, further access to the Site, and an appropriate facilities, as the DAB may require for the purpose of making a decision on such dispute The DAB shall be deemed to be not acting as arbitrator(s) Within 84 days after receiving such reference, or within such other period as may be proposed by the DAB and approved by both Parties, the DAB shall give its decision, which shall be reasoned and shall state that it is given under this Sub-Clause The decision shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award as described below Unless the Contract has already been abandoned, repudiated or terminated, the Contractor shall continue to proceed with the Works in accordance with the Contract If either Party is dissatisfied with the DAB’s decision, then either Party may, within 28 days after receiving the decision, give notice to the other Party of its dissatisfaction If the DAB fails to give its decision within the period of 84 days (or as otherwise approved) after receiving such reference, then either Party may, within 28 days after this period has expired, give notice to the other Party of its dissatisfaction In either event, this notice of dissatisfaction shall state that it is given under this Sub-Clause, and shall set out the matter in dispute and the reason(s) for dissatisfaction Except as stated in Sub-Clause 20.7 [Failure to Comply with Dispute Adjudication Board’s Decision] and Sub-Clause 20.8[Expiry of Dispute Adjudication Board’s Appointment], neither Party shall be entitled to commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance with this Sub-Clause, SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 81 If the DAB has given its decision as to a matter in dispute to both Parties, and no notice of dissatisfaction has been given by either Party within 28 days after it received the DAB’s decision, then the decision shall become final and binding upon both Parties 20.5 Amicable Settlement Where notice of dissatisfaction has been given under Sub-Clause 20.4 above, both Parties shall attempt to settle the dispute before the commencement of arbitration However, unless both Parties agree otherwise, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made 20.6 Arbitration Unless settled amicably, any dispute in respect of which the DAB’s decision (if any) has not become final and binding shall be finally settled by international arbitration Unless otherwise agreed by both Parties: a b c the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce the dispute shall be settled by three arbitrations appointed in accordance with these Rules, and the arbitration shall be conducted in the language for communications defined in SubClause 1.4 [Law and Language] The arbitration(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or evaluation of the Engineer, and any decision of the DAB, relevant to the dispute Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the dispute Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction Any decision of the DAB shall be admissible in evidence in the arbitration Arbitration may be commenced prior to or after completion of the Works The obligations of the parties, the Engineer and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works 20.7 Failure to Comply with Dispute Adjudication Board’s Decision In the event that: a b c neither Party has given notice of dissatisfaction within the period stated in Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] the DAB’s related decision (if any) has become final and binding, and a Party fails to comply with this decision, then the other Party may without prejudice to any other rights it may have, refer the failure itself to arbitration under Sub-Clause 20.6 [Arbitration], Sub-Clause 20.4[Obtaining Dispute Adjudication Board’s Decision] and SubClause 20.5 [Amicable Settlement] shall not apply to this reference 20.8 Expiry of Dispute Adjudication Board’s Appointment If a dispute arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works and there is no DAB in place, whether by reason of the expiry of the DAB’s appointment or otherwise: SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 82 a b Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] and Sub-Clause 20.5 [Amicable Settlement] shall not apply, and the dispute may be referred directly to arbitration under Sub-Clause 20.6 [Arbitration] SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 83 G APPENDICIES Performance Security (Bank Guarantee) (UNCONDITIONAL) To: Attn: We, [BANK’s Name], having our registered office at [BANK’s Address], have been informed that, [CONTRACTOR’s Name] (hereinafter called "the Contractor") has entered into the Construction Contract ref … dated ….with you, for the execution of [Package] for [Project] at [Location] (hereinafter called "the Contract") Furthermore, we understand that, according to the conditions of the Contract, a Performance Guarantee is required At the request of the Contractor, We hereby irrevocably undertake to pay you any sum or sums not exceeding in the total amount of ………………… (in words: ……………………………), upon receipt by us of your first original demand in writing accompanied by a written statement stating that the Contractor is in breach of his obligation(s) under the Contract, without your needing to prove or to show grounds for your demand or the sum specified therein This Guarantee shall be effective from ……………… to the end of ……………………… or until the hand over date (the later of the two) Consequently, any demand for payment under this guarantee must be received by us at our office on or before …………………… or on or before the handover date (the later of the two) This Guarantee is governed by the Law of [Country] Any dispute in respect thereof shall be settled by competent tribunals SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 84 Bank Guarantee for ADVANCE PAYMENT (UNCONDITIONAL) To: Attn: We, [BANK’s Name], having our registered office at [BANK’s Address], have been informed that, [CONTRACTOR’s Name] (hereinafter called "the Contractor") has entered into the Construction Contract ref … dated ….with you, for the execution of [Package] for [Project] at [Location] (hereinafter called "the Contract") Furthermore, we understand that, according to the conditions of the Contract, an advance payment is to be made against an advance payment guarantee in the sum or sums indicated below At the request of the Contractor, We hereby irrevocably undertake to pay you any sum or sums not exceeding in the total amount of …………………… (In words: …………………………), upon receipt by us of your first original demand in writing accompanied by a written statement stating that the Contractor is in breach of his obligation(s) under the Contract because the Contractor used the advace payment for purposes other than toward the execution of the said Project or due to early termination of the Contract It is a condition for any claim and payment under this guarantee to be made that the advance payment referred to above must have been received by the Contractor on his account number …………………… at [BANK’s Name] The maximum amount of this guarantee shall be progressively reduced by the amount of the Advance Payment repaid by the Contractor as indicated in copies of interim statements or payment certificates which shall be presented to us by the Contractor This Guarantee shall be effective from …………… to the end of ………………… or until the hand over date (the later of the two) Consequently, any demand for payment under this guarantee must be received by us at our office on or before …………………… or on or before the handover date (the later of the two) This Guarantee is governed by the Law of [Country] Any dispute in respect thereof shall be settled by competent tribunals SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 85 ... [Employer name] SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page C MASTER PROGRAM (To be attached later) SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender... GENERAL CONDITIONS OF CONTRACT 22 G APPENDICIES .84 SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page A PROPOSED CONTRACT AGREEMENT Contract... (BOQ) i The detailed work schedules (Master Program) j Any other documents SCHAEFFLER VIETNAM NEW FACTORY Project – Package WP1 – Tender Document Book Page 3 Contract Price and Terms of Payment (Reference